Sunday, December 13, 2015

Crazy Week in County Government Raises More Questions Than It Answers

*Should Doña Ana County jailer Chris Barela have been arrested?
Yes. I don't say Barela should be convicted. I haven't seen all the evidence; and conviction requires proof “beyond a reasonable doubt.” I have seen enough to believe he should be charged. I'd seen enough years ago. (So had county officials and the state police. Someone's inaction let the statute of limitations pass on some of Barela's alleged crimes.) 

*Will Others Be Charged? Investigators note “the investigation is ongoing,” but they also note that charging documents mentioned some other names. We know that folks including John Caldwell and eventually Julia Brown received reports on Barela's alleged misconduct and didn't have him prosecuted or, apparently, discipline him. (Did they stop some alleged misconduct?) Does that mean they've “obstructed justice” or become “accessories”? I'm not a criminal lawyer and haven't investigated fully.

*Did the Sheriff Act Prudently and Lawfully in taking over the jail? Tougher question than either side will concede.
Sheriff says yes, as a conservator of the peace under Section 4-41-2. Two supporting arguments: (1) that prisoners might riot upon hearing that their jailer was accused of misusing their money, and Barela hadn't implemented contingency planning for his absence, so that action was required for safety; and (2) jail was a crime scene, with others (perhaps including Barela's superiors) possibly involved in wrongdoing, so that not to act would be turning the jail over to suspects.
County Attorney Nelson Goodin says, “We didn't believe he had the authority” and that if Vigil felt he had to take this action he could have applied to the court, as for control of any crime scene. County also says contingency planning was in place and adequate; but a DASO source says interviews with jail personnel proved otherwise. DASO also notes the Sheriff's “team” included experienced corrections personnel, current and retired, approved by the State Director of Corrections.

*Didn't the Judge Find the Sheriff Acted Illegally? Yes and No. The County applied for an Order ex parte (with the Sheriff not represented). Judge Arrieta watered down the order, signed it, and set a December 18 hearing on whether to continue the order. Technically, he found that the County was “likely to prevail” – but without hearing the Sheriff's side. Probably no one will bother to argue December 18 because the issue will be “moot”: whether the Sheriff was right or wrong in taking over the jail temporarily will be academic. 
*Should County Commissioners have delayed renewing County Manager's contract after being forewarned that Barela would be arrested soon and that other arrests were possible? The vote was 4-1. 

*Did the Commissioners violate the open meetings law? Depends: was this an “emergency meeting?” Legally, an emergency requires “unforeseen circumstances that if not addressed immediately will likely result in injury or damages to persons or property or substantial financial loss to the public body.”
Certainly the situation was unforeseen. Did having DASO in charge of the jail for 48-72 hours threaten to do the requisite damage?
Goodin said “we looked at it fairly extensively” and that he was “pretty confident” they'd reached the right answer. (One commissioner was insufficiently reassured by Goodin's expression of confidence and refused to participate.) Goodin added that law requires a report to the AG within ten days, and the County will do that. 

*Why can't reasonably intelligent public officials, presumably of good will and with our interests in mind, cooperate a great deal more effectively than this? Beats me. Everyone on both sides makes very strong arguments why s/he's right; but county government still threatens to become a sideshow.

[The above column appeared this morning, Sunday, December 13 (which would have been my mother's 95th birthday, and I wish she were hear to read the column]) in the Las Cruces Sun-News, and will appear later today on the KRWG-TV website's "Local Viewpoints" section.]

It's odd to feel, moments after sending off a column, that although everything I've written is accurate, to the best of my knowledge, the column seems decidedly more sympathetic to one side in the controversy than I feel. But that's how I felt with this one.
Why? First of all, because while I discussed a lot of issues and legal points and what-not, and faithfully reflected what some people said on each side, I didn't voice some gut feelings. One of those is that Billy Garrett and Wayne Hancock are damned good public servants. Whether I agree with them on every issue or not, they're dedicated, hard-working, open-minded, and caring – and neither is in it for the money or for his political future. Neither deserves the shit that gets hurled at him.  (In fact, both Hancock and I initially reported to law enforcement certain allegations of criminal conduct by Mr. Barela.)  I would hate to see the conflict with the Sheriff distract from their work.
Secondly, although I support DASO and agree with some of the Sheriff's complaints, and have great personal trust in some of the officers working with him, there's just an extra level of truculence in the discussions we've heard lately. Usually that kind of extra truculence means something more is going on than simply a debate about policy. One side (or both) has some hidden agenda or motive. Could be as simple as long-suppressed anger by deputies that they aren't as well paid as they feel they should be, or that they're stretched too thin in a rather vast county. Could be something more. I don't claim to know. I just smell something. Don't know what it is yet.
Third, in interviewing both sides I should have explored with Sheriff Vigil whether or not he should now recuse himself from the investigation, or should have done so. Investigating Mr. Barela is one thing. I'm unaware of any bad history between the two. The State Police didn't seem to have gotten much done, for reasons I haven't yet identified. Someone needed to carry the investigation forward. 
Maybe the same is true as to Ms. Brown and others; but there, at least arguably, Vigil shouldn't be supervising the investigation. There's been a very public history of Vigil's quarrels with Debra Weir (Human Resources), and with Ms. Brown when she jumped in on Weir's side. Now it isn't as if Sheriff Vigil were the judge in this matter, where he would obviously have no choice but to step aside. He's investigating. Maybe it's okay, because the ultimate decision on any charges would be made by D.A. Mark D'Antonio, not Sheriff Vigil. 
But although I've disagreed with Ms. Brown often enough, and my mind is surely not closed to the possibility she could have acted illegally, I'd feel more comfortable if someone were investigating her who had neither been sitting in her lap nor poisoning her coffee last week. Nothing in the foregoing should be taken as reflecting doubt on Vigil's integrity. He just ought to remove himself from having that integrity unnecessarily tested. It would look better.
At the same time, certain aspects of the Sheriff's side of this needed expression. One was that although they may be wrong, his investigators honestly and probably reasonably see other county officials as persons of interest. Another was that although I don't know whether or not whether the statute cited by the Sheriff authorized his action in taking over the jail, it was unfair to let unknowing readers assume that Judge Arrieta had acted after hearing each side make its best arguments. Rather, as Mr. Goodin readily acknowledges and most trial lawyers would know, the order was issued after only one side's story got told, and was intended as a temporary order pending a fairer and fuller examination of the facts and the law. 

Too, I'm put off by some of county management's tactics -- such as removing information officer Kelly Jamison, whom all sides agree is a great asset, from DASO temporarily -- ostensibly to prevent her from experiencing a conflict-of-interest but obviously to punish the Sheriff in a petty way.  Remind him who's boss, legally, over DASO employees.  Fortunately she's been returned to DASO.

Another observation worth making is that just as wars drown out a lot of subtle differences in people's pre-war positions on whether or not there should be a war, folks who get drawn into battles (like this current one in county government) quickly find themselves pushed toward the extremes, not only less and less able to accept opposing arguments but less and less able even to listen meaningfully to anyone “on the other side.” Inevitably that saddens us non-combatants. Not only because unnecessary friction is not conducive to a harmonious and peaceful life but because truth also tends to be an early casualty, and each side's inability even to realize the possible sincerity of opponents makes productive discussion awfully difficult.

I'm not on either side, although I have friends and people I trust on both sides. 

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